Terms of service

Updated as of: July 9, 2025

 

Please read the following Terms of Use (these “Terms”) carefully before using the Breath Death Inc. (“Breath Death”, “we,” “our,” or “us”) website, located at https://getbreathdeath.com/ purchasing any Breath Death product (the “Product/s”) or participating in any online features, services and/or programs offered by us, including our website (collectively, the “Services”).  These Terms apply to all of our Services and Products.

 

These Terms do not apply to any other web page operated and/or owned by anyone other than Breath Death and its affiliates, including, but not limited to, any website, mobile application, social media site, or other material.  When visiting these third party websites and other properties, you should refer to the terms and conditions in effect for that website or property.

 

WHERE PERMITTED BY APPLICABLE LAW, WHEN YOU AGREE TO THESE TERMS YOU ARE AGREEING TO RESOLVE ANY CLAIM BETWEEN YOU AND BREATH DEATH THROUGH BINDING, INDIVIDUAL ARBITRATION RATHER THAN IN COURT AND WAIVING A JURY TRIAL AND CLASS ACTION RIGHTS, EXCEPT AS LIMITED AND/OR EXCLUDED HEREIN. 

 

These Terms include important information about your legal rights, remedies, and obligations, including various limitations and exclusions, and provisions that govern the procedure, jurisdiction and venue of any disputes.  By accessing or using the Services, you are entering into a legal contract with us regarding your use of the Services.  You agree to be bound by these Terms and all additional terms incorporated by reference.  If you do not agree to any portion of these Terms, you should not access or otherwise use the Services.

 

1. Informational Use.  Subject to these Terms, we grant you a non-transferable, non-exclusive, limited license to use and access the Services for your non-commercial use.  By merely providing you access to and use of the Services, we do not warrant or represent that: (a) any statement, documents, images, graphics, logos, designs, audio, video, or any other information provided from or on the Services (collectively, the “Content”) is accurate or complete; (b) the Content is up-to-date or current; (c) we have any obligation to update any Content; (d) the Content is free from technical inaccuracies or programming or typographical errors; (e) the Content is free from changes made by a third party; (f) your access to the Services will be free from interruptions, errors, computer viruses or other harmful components; and/or (g) any information obtained in response to comments or questions asked through the Services is or will be accurate or complete.

 

2. Services Use and Content.

 

(a) Use of the Services.  The ownership of the Services, Content, and all rights therein are and will remain with Breath Death.  You may use the Services for non-commercial purposes if you do not remove, modify, or alter any copyright or proprietary rights notices that may be present.  You may not otherwise use, modify, copy, print, display, distribute, publish, or sell any information, images or other Content from the Services without our express, prior written consent.  Any special rules for any software, downloads, and other items accessible through the Services may be included elsewhere in the Services and are incorporated into these Terms by reference.

 

(b) Restrictions on Use.  You may not: (i) remove or obscure any copyright, trademark, digital watermarks, proprietary legends or other proprietary notices from any portion of the Services; (ii) reproduce, modify, prepare derivative works based upon, distribute, license, lease, sell, resell, transfer, publicly display, publicly perform, transmit, stream, broadcast or otherwise exploit the Services, or any aspect of them, except as expressly permitted by us; (iii) decompile, reverse engineer, jeopardize the correct functioning of the Services, or disassemble the Services, or otherwise attempt to derive the source code of the software (including the tools, processes, methods, and infrastructure) that enables or underlies the Services, except as may be permitted by applicable law; (iv) cause or launch any programs, spiders, robots, or scripts or other automatic or manual devices or processes for the purpose of extracting, scraping, indexing, surveying, or otherwise data mining any portion of the Services, or unduly burdening or hindering the operation and/or functionality of any aspect of the Services; (v) attempt to gain unauthorized access to or impair any aspect of the Services, or the related systems, servers, or networks; (vi) use the Services for resale, time-sharing or other similar purposes; (vii) use the Services to stalk, harass or harm another individual, or in any way that is in violation of any law or regulation; (viii) impersonate any person or entity, or otherwise misrepresent your affiliation with any person or entity; or (ix) use any portion of the Services or any Content in any manner that may give a false or misleading impression, attribution or statement as to us or any other person or entity.

 

3. Updates.  We may make changes to the Services, the Content or these Terms or stop providing any of the Services and/or the Content at any time and without further notice to you.  We will make an effort to update the Services with any changes to these Terms, and you are encouraged to review these Terms frequently.  Your continued access or use of the Services after such posting constitutes your consent to be bound by the Terms, as amended.

 

4. Privacy and Electronic Communication.  We know that privacy is important to you, and it is important to us as well.  By using the Services, you consent to receive electronic communications from us unless you follow applicable opt out procedures.  We will communicate with you by email or by posting notices on our Services.  You agree that all agreements, notices, disclosures and other communications that we provide to you electronically satisfy any legal requirement that such communication be in writing.

 

5. User Account and Security.  To access certain features of the Services, we may require that you sign up using your email address and a password to create a user account (“User Account”).  We use reasonable precautions to protect the privacy of your username, password, and User Account information.  However, you are ultimately responsible for protecting your username, password, and User Account information from disclosure to third-parties, and you are not permitted to circumvent the use of required encryption technologies, if any.  While we may provide certain encryption technologies and use other reasonable precautions to protect your confidential information, we do not and cannot guarantee or warrant that information transmitted through the Internet is secure, or that such transmissions are free from delay, interruption, interception or error.  You agree to provide current, complete and accurate purchase and account information for all purchases made using our Services.  You agree to promptly update your User Account and other information, including your email address and credit card numbers and expiration dates, so that we, and our third party service provider, can complete your transactions and contact you as needed.  You agree that you are solely responsible for activity that occurs under your User Account.  We are entitled to act on all instructions received by anyone using your User Account, and we reserve the right to pursue any and all claims against any user of your User Account.

 

6. Objectionable Material.  You acknowledge that, in using the Services and accessing the Content and User Content (as defined herein), you may encounter material that you deem to be disturbing, offensive or objectionable.  You agree to use the Services at your sole risk and that we will have no liability to you for material that may be disturbing, objectionable or offensive to you.

 

7. Not Intended for Children and Other Age Requirements.  The Services are not intended or designed to attract children under the age of thirteen (13).  You affirm that you are at least eighteen (18) years of age, or are an emancipated minor, and are fully able and competent to enter into the terms, conditions, obligations, affirmations, representations, and warranties set forth in these Terms, and to abide by and comply with these Terms.

 

8. Disclaimers.

 

(a) No Warranties for Services.  When using the Services, information will be transmitted in such a way that may be beyond our control.  Accordingly, we make no warranty concerning the delay, failure, interruption, or corruption of any data, Content, User Content, or any other information transmitted in connection with the use of the Services.  YOU EXPRESSLY AGREE THAT YOUR USE OF THE SERVICES IS AT YOUR SOLE RISK.  THE SERVICES, THE CONTENT AND THE USER CONTENT ARE PROVIDED “AS IS” AND “AS AVAILABLE” FOR YOUR USE, WITHOUT WARRANTIES OF ANY KIND, EITHER EXPRESS OR IMPLIED, UNLESS THESE WARRANTIES ARE LEGALLY INCAPABLE OF EXCLUSION.  WE MAKE NO REPRESENTATIONS OR WARRANTIES THAT THE SERVICES, THE CONTENT, THE USER CONTENT OR ANY SERVICES OR FEATURES OFFERED IN CONNECTION WITH THE SERVICES ARE OR WILL REMAIN UNINTERRUPTED OR ERROR-FREE, THAT DEFECTS WILL BE CORRECTED, OR THAT THE WEB PAGES ACCESSIBLE ON OR THROUGH THE SERVICES, OR THE SERVERS USED IN CONNECTION WITH THE SERVICES, ARE OR WILL REMAIN FREE FROM ANY VIRUSES, WORMS, TIME BOMBS, DROP DEAD DEVICES, TROJAN HORSES, OR OTHER HARMFUL COMPONENTS.  WE DO NOT GUARANTEE THAT YOU WILL BE ABLE TO ACCESS OR USE THE SERVICES AT TIMES OR LOCATIONS OF YOUR CHOOSING, OR THAT WE WILL HAVE ADEQUATE CAPACITY FOR THE SERVICESAS A WHOLE OR IN ANY SPECIFIC GEOGRAPHIC AREA.  WE MAKE NO REPRESENTATION OR WARRANTY REGARDING GOVERNMENT COMPLIANCE OF ANY SOFTWARE USED IN RUNNING THE SERVICES.

 

(b) Indemnification.  You agree to defend, indemnify, and hold harmless Breath Death and our directors, officers, employees, agents, successors and assigns from and against any and all claims, demands, suits, proceedings, liabilities, judgments, losses, damages, expenses, and costs (including, but not limited to, reasonable attorneys’ fees) assessed or incurred by us, directly or indirectly, with respect to or arising out of: (i) your failure to comply with these Terms; (ii) your breach of your obligations under these Terms; (iii) your use of the rights granted hereunder, including, but not limited to, any claims made by any third parties; (iv) your violation of any law or the rights of a third party; (v) any dispute or issue between you and any third party; (vi) any User Content you upload to, or otherwise make available through, the Services; (vii) your willful misconduct; and (viii) any other party’s access to and/or use of the Services using your User Account and password.  Breath Death reserves the right, at its own expense, to assume the exclusive defense and control of any matter otherwise subject to indemnification by you, and in that case, you agree to cooperate with our defense of that claim.

 

(c) Dietary Preferences and Restrictions.  The Content on the Services may contain dietary advice and recommendations, and the Products delivered by us contain various food ingredients.  You should always consult with your physician or other healthcare professional before adopting any advice or trying new foods, whether offered through the Services or otherwise.  We do not guarantee the accuracy of any nutritional information provided by Breath Death. Breath Death will not be responsible for any loss or damage resulting from your reliance on nutritional information, nor for ensuring that whatever foods you purchase, prepare or consume are in accordance with your respective dietary needs, restrictions or preferences.  The major U.S. allergens as determined by the U.S. Food and Drug Administration (milk, wheat, eggs, soybeans, fish, shellfish, peanuts and tree nuts) may be stored, portioned and packed in some of our facilities.  Although we take precautions to limit the potential for cross-contamination, cross-contamination may occur between food products, allowing products purchased through the Services to contain some or all of those allergens.  Our products may also include other ingredients that you are allergic to.  You should always check the ingredients associated with any products that you receive from Breath Death to avoid potential allergic reactions or adverse health events.  If you have or suspect that you have an allergic reaction or other adverse health event, promptly contact your healthcare provider.

 

(d) Verify Data.  You are responsible for establishing such procedures as you deem appropriate to verify the accuracy of data that you transmit using the Services, and we will have no obligation to verify the accuracy of that data.  While we reserve the right to review any and all content you submit, including User Content made available through the Services, you will remain responsible for such content.  Your use of the Services is subject to the additional disclaimers and caveats that may appear throughout the Services.

 

9. Limitation of Liability.  IN NO EVENT WILL WE OR OUR AFFILIATES, OR ANY OF OUR RESPECTIVE OFFICERS, DIRECTORS, AGENTS OR OTHER REPRESENTATIVES, BE LIABLE FOR ANY DIRECT, INDIRECT, INCIDENTAL, SPECIAL, EXEMPLARY, PUNITIVE, OR CONSEQUENTIAL DAMAGES OF ANY KIND ARISING FROM YOUR USE OF PRODUCTS OR THE SERVICES, THE CONTENT AND/OR THE USER CONTENT PROVIDED IN CONNECTION WITH PRODUCTS OR THE SERVICES, OR FOR ANY OTHER CLAIM RELATED IN ANY WAY TO YOUR USE OF PRODUCTS OR THE SERVICES, THE CONTENT AND/OR THE USER CONTENT PROVIDED ON OR THROUGH THE SERVICES.  IN ADDITION, WE WILL NOT BE LIABLE FOR ANY NEGATIVE REPERCUSSIONS TO ANYONE BASED ON THE USE OF OR INABILITY TO USE PRODUCTS OR THE SERVICES, INCLUDING, BUT NOT LIMITED TO, ANY LOST GOODWILL OR LOST PROFITS.  WE ARE NOT LIABLE FOR ANY PERSONAL INJURY, INCLUDING DEATH, OR PROPERTY DAMAGE CAUSED BY YOUR USE OR MISUSE OF PRODUCTS OR THE SERVICES, THE CONTENT AND/OR ANY USER CONTENT.  WE ARE NOT RESPONSIBLE FOR (A) INACCURACIES OR ERRORS IN OR OMISSIONS FROM THE CONTENT OR USER CONTENT; (B) DELAYS, ERRORS, OR INTERRUPTIONS IN THE TRANSMISSION OR DELIVERY OF THE CONTENT OR USER CONTENT; OR (C) LOSS OR DAMAGE ARISING THEREFROM OR OCCASIONED THEREBY, OR BY ANY REASON OF NONPERFORMANCE.  REMEDIES UNDER THESE TERMS ARE EXCLUSIVE AND ARE LIMITED TO THOSE EXPRESSLY PROVIDED FOR IN THESE TERMS.  TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, OUR ENTIRE LIABILITY SHALL BE LIMITED TO THE AMOUNT PAID BY YOU FOR THE PRODUCTS AND SERVICES YOU RECEIVE USING THE SERVICES AND THE CONTENT.  BECAUSE SOME STATES AND JURISDICTIONS DO NOT ALLOW THE EXCLUSION OR LIMITATION OF LIABILITY FOR CONSEQUENTIAL OR INCIDENTAL DAMAGES, IN SUCH STATES OR JURISDICTIONS, OUR LIABILITY WILL BE LIMITED TO THE GREATEST EXTENT PERMITTED BY APPLICABLE LAW.  THESE TERMS GIVE YOU SPECIFIC LEGAL RIGHTS.  YOU MAY ALSO HAVE OTHER RIGHTS THAT MAY VARY FROM ONE STATE OR JURISDICTION TO ANOTHER.

 

10.  Payment.

 

(a) General.  Products offered on the Services may be subject to fees charged by Breath Death, which will be identified at the point of purchase of such products.  Products can be purchased a la carte, or you may purchase a subscription through the Services.  We may use a third party service provider to process any payments.  When you make a payment, we will transfer you to a secure network provided by our third party processor through which all transactions are processed.  We do not retain any of your credit card or other payment information.  You agree to promptly update your User Account and other information, including your email address and payment method details, so that we (and our third party service provider) can complete your transactions and contact you as needed in connection with your transactions.  You understand and acknowledge that Breath Death may adjust the pricing for its products and services in the future and that you will be charged such adjusted fees on a going forward-basis after notice to you from us.

 

(b) Subscription Service.  We offer a subscription service, where you can sign up to receive recurring deliveries of Products, if applicable (the “Subscription Service”).  The Subscription Service continues until cancelled in accordance with our Cancellation Policy (link) below.  Each month you will receive a package from Breath Death with the Products you have chosen.  You can find specific details regarding your subscription by visiting the Services and accessing your User Account details.  When you register for the Subscription Service (and each time you change your plan) you expressly authorize and agree that we and/or our third party payment processor is authorized to automatically charge your payment method on a monthly, recurring basis in an amount equal to the then-effective rate for your plan, together with any applicable taxes and shipping fees, for as long as you continue to use the Subscription Service, unless you cancel your Subscription Service in accordance with these Terms.  You acknowledge and agree that we will not obtain any additional authorization from you for such automatic, recurring payments.  Every time that you use the Subscription Service, you re-affirm that we are authorized to charge your payment method as provided herein, and to have all applicable fees and charges applied to same, including any applicable taxes and shipping fees.

 

(c) Payment and Billing Information.  By providing your credit or debit card information (or other payment method accepted by Breath Death from time to time) when you sign up, whether for a one-time purchase or for the Subscription Services, and as updated from time to time on your User Account page, if applicable (your “Payment Method”), you (i) authorize Breath Death and/or our third-party payment processor to charge your Payment Method; and (ii) represent that any payment information you provide is true and accurate.  If your Payment Method cannot be authorized or is otherwise in error, we may suspend or cancel your order.  In the event of such failure of your Payment Method, we may take reasonable steps to retry your Payment Method.  We may contact you to reconfirm or update your Payment Method.  We are not responsible for any fees incurred by you when charging or retrying your Payment Method, including but not limited to, overdraft fees.  You can update or change your Payment Method and other billing and payment account information by visiting your User Account page on the Services.  Changes made to your billing account will not affect charges that we submit to your billing account before we could reasonably act on your changes to your billing account.  Your right to use the Subscription Service is subject to limits established by Breath Death and/or by the issuer of your Payment Method.

 

(d) Cancellations Policy.  You may cancel your subscription at anytime by visiting your User Account page and following the instructions located therein, or by contacting us at fresh@getbreathdeath.  Changes to, or cancellations of, your subscription, may also be subject to additional timing and other restrictions set forth by Breath Death on the Services.  If you cancel the Subscription Service, your subscription will terminate immediately except as to ANY ORDER(S) IDENTIFIED AS “PROCESSING” OR “SHIPPED” ON YOUR USER ACCOUNT PAGE which CANNOT BE CANCELLED.  YOU WILL BE RESPONSIBLE FOR ALL CHARGES (INCLUDING ANY APPLICABLE TAXES AND OTHER CHARGES) INCURRED WITH RESPECT TO ANY ORDER IDENTIFIED AS "PROCESSING" OR "SHIPPED" PRIOR TO THE CANCELLATION OF YOUR SUBSCRIPTION.  If you cancel the Subscription Service, there is no guarantee that your User Content will be saved. 

 

(e)  Refunds and Credits.  If you are dissatisfied with your product and/or something is missing from your package, please contact us at fresh@getbreathdeath. com and we may, in our sole discretion, issue a credit and/or refund to your User Account.  Unless otherwise provided by law or by a particular offer from us, all purchases are final and non-refundable.  We may, in our sole discretion, issue a credit and/or refund to your User Account.

 

11.  Third Party Content and Third Party Applications.  We may provide hyperlinks to other websites maintained by third parties, like Facebook and Instagram, or we may provide third party content on the Services that we think will be relevant to our users (collectively, “Third Party Content”) by framing or other methods.  In addition, the Services may include certain applications, features, programs and services provided by third parties (collectively, “Third Party Applications”).  We do not monitor Third Party Content or Third Party Applications and can make no guarantee as to the accuracy or completeness of such Third Party Content or Third Party Applications.  The links to third party websites, any Third Party Content, and any Third Party Applications are provided for your convenience and information only.  The content on any linked website or in any Third Party Application is not under our control and we are not responsible for the content of linked websites and/or Third Party Applications, including any further links contained in a third party website.  We make no representation or warranty in connection with any Third Party Content or Third Party Application, which at all times and in each instance is provided “as is.” If you decide to access any of the third party websites linked to the Services, any Third Party Content, and/or any Third Party Application, you do so entirely at your own risk.  If a third party links or refers to the Services, it is not necessarily an indication of an endorsement, authorization, sponsorship, affiliation, joint venture, or partnership by or with us.  In most cases, we are not even aware that a third party has linked to or refers to the Services.

 

12.  Intellectual Property.  The Content of the Services is intellectual property owned, controlled and/or licensed by us and/or our affiliates, or intellectual property that we are legally permitted to access and use.  All applicable intellectual property laws, including copyright laws, protect our rights in and to the Content.  No portion of the Content and/or User Content may be reproduced in any form or by any means, except as provided in Section 2 and as set forth in the Terms.  We are the owner or authorized licensee of, or are otherwise permitted to use, all trademarks, service marks, and logos used and displayed by us on the Services.  All trademarks and service marks of Breath Death that may be referred to on the Services are the property of Breath Death or one of our affiliates.  Other parties’ trademarks and service marks that may be referred to on the Services are the property of their respective owners.  Nothing on the Services should be construed as granting, by implication, estoppel, or otherwise, any license or right to use any of our, or our affiliates’, trademarks, service marks, logos, or copyrighted materials without our prior written permission.

 

13.  Claims Regarding Copyright Infringement.  Breath Death respects the intellectual property rights of others. If you are a copyright owner or an agent thereof and believe that any User Content or other content on the Services infringes your copyright, you may submit a notification pursuant to the Digital Millennium Copyright Act (“DMCA”) by providing our Copyright Agent with the following information in writing (see 17 U.S.C. § 512(c)(3) for further detail):

  • A physical or electronic signature of the copyright owner or a person authorized to act on behalf of the owner of an exclusive right that is allegedly infringed;
  • Identification of the copyrighted work claimed to have been infringed, and if multiple copyrighted works are to be covered by a single notification, a list of such works;
  • Identification of the material that is claimed to be infringing or to be the subject of infringing activity and that is to be removed or access to which is to be disabled. Please also provide information reasonably sufficient to permit us to locate the material;
  • Information reasonably sufficient to permit us to contact you, such as your name, address, telephone number, and your email address;
  • A statement by you that you have a good faith belief that the disputed use is not authorized by the copyright owner, its agent, or the law;
  • A statement, under penalty of perjury, that the information in the above notification is accurate and that you are, or are authorized to act on behalf of, the owner of an exclusive right that is allegedly infringed.

Please note that if you fail to comply with all of the requirements set forth above, your DMCA notification may not be effective. If you believe Breath Death has infringed upon your copyright rights, please contact us at fresh@getbreathdeath. After receiving an effective notification of claimed infringement, we will process and investigate the claim and, if appropriate, act expeditiously to remove or disable access to material claimed to be infringing.

If a notice of copyright infringement has been filed against material posted by you, you may make a counter-notification by contacting us at fresh@getbreathdeath, provided that such counter-notification must be in writing and contain the following requisite information:

  • Your physical or electronic signature.
  • Identification of the material that has been removed or to which access has been disabled and the location at which the material appeared before it was removed or access to it was disabled.
  • A statement by you under penalty of perjury that you have a good faith belief that the material was removed or disabled as a result of mistake or misidentification.
  • Your name, address, and telephone number, and a statement that you consent to the jurisdiction of the federal district court in New York, New York, and that you will accept service of process from the person who filed the notice of copyright infringement or an agent of such person.

If we receive a valid counter-notification, we may reinstate the removed or disabled material in accordance with the DMCA.

This notification process does not limit Breath Death’s ability to exercise any other rights or pursue any other remedies it may have to address claims of infringement.

Notice of alleged infringement must be sent by electronic mail to our Copyright Agent, at fresh@getbreathdeath.com.

 

14.  Interactive Services and User Content Policy.

 

(a) We offer certain features of the Services designed to facilitate interaction between you, Breath Death and other users of the Services, including, but not limited to, the comment sections located in designated areas of the Services (collectively, the “Interactive Services”).  You agree to use the Interactive Services in full compliance with all applicable laws and regulations.  You shall be solely responsible for your comments, opinions, statements, feedback, suggestions, messages, comments, ideas, notes, and other content that you (i) you submit or post on the Services; or (ii) have posted or uploaded to your social media accounts, including but not limited to Instagram, Twitter, Facebook, Snapchat, and Pinterest, which are tagged with #BreathDeath, @GetGreathDeath or any other Breath Death related or promoted hashtag or properties (collectively, “User Content”).  We do not claim ownership in your User Content.  However, by submitting any User Content in any form to Breath Death, in addition to other provisions of these Terms, you automatically grant Breath Death, its affiliates, successors and assigns, a perpetual, irrevocable, royalty-free, worldwide, non-exclusive, sublicensable and assignable right and license to use, copy, reproduce, modify, adapt, publish, edit, translate, create derivative works from, transmit, distribute, publicly display and publicly perform such User Content for the purpose of displaying and promoting such User Content on any website or other Services owned or operated by, and in any related marketing materials produced by, Breath Death and/or its affiliates, successors and assigns without further notice to you, or consent from you, and without any requirement to pay anything to you or anyone else.  You will not have or obtain any rights in or to any form, media, or technology incorporating any of your User Content.  You also grant to Breath Death and its affiliates, successors and assigns the exclusive right to incorporate your User Content into other works in any form, medium or technology, whether now known or later developed, for the full term of any copyrights, trademarks and other intellectual and proprietary rights (collectively, “Rights”) that may exist in that User Content.  By submitting or posting User Content on the Services, on your social media accounts or through any tools or applications we provide for posting or sharing your User Content with us, you also represent and warrant to Breath Death that either you own all Rights in your User Content or all third party holders of Rights in your User Content have validly and irrevocably granted to you the right to grant the rights and licenses set forth above.  You further acknowledge that Breath Death and its affiliates, successors and assigns will be entitled to unrestricted use of the User Content for any purpose whatsoever, commercial or otherwise.

 

(b) Please remember that, even if we review your User Content, you will be solely responsible for your User Content and the consequences of posting or publishing it.  We do not endorse any User Content or any opinion, recommendation, or advice expressed on or through the Services, and we expressly disclaim any and all liability in connection with User Content.  You acknowledge that Breath Death, our site moderators and our agents reserve the right, in our sole discretion, to refuse, move, and/or remove User Content available on or through the Services that, in our judgment, does not comply with these Terms and any other rules of user conduct applicable to our Services, or is otherwise harmful, objectionable, or inaccurate.  We are not responsible for any failure or delay in removing such User Content.  You represent and warrant that neither your User Content nor your uploading, publishing or otherwise making available your User Content nor Breath Death’s use of your User Content as permitted herein will infringe, misappropriate or violate a third party’s intellectual property or proprietary rights, or rights of publicity or privacy, or result in the violation of any applicable law or regulation.  You agree that you will not provide any User Content that is defamatory, libelous, hateful, violent, obscene, pornographic, invasive of another’s privacy, infringing of another’s intellectual property rights, unlawful, or otherwise offensive, as determined by Breath Death in its sole discretion.

 

15.  Termination of Service.  We may suspend or terminate your right to access portions of the Services, including your User Account, at any time, without notice, for conduct that we believe violates these Terms and/or is harmful to other users of the Services, to us, to our partners, to the contributors, to the business of our Internet service provider, or to other information providers, or as we otherwise deem appropriate, in our sole discretion.

 

16.  Additional Remedies.  You acknowledge that your conduct that is inconsistent with these Terms may cause us irreparable damage for which remedies other than monetary relief may be inadequate.  In such instances, you agree that we may seek injunctive or other equitable relief to restrain such conduct without the necessity of proving actual harm or posting a bond.

 

17.  Dispute Resolution, Arbitration and Class Action Waivers. 

PLEASE READ THIS SECTION CAREFULLY BECAUSE IT REQUIRES THE PARTIES TO ARBITRATE THEIR DISPUTES AND LIMITS THE MANNER IN WHICH YOU CAN SEEK RELIEF FROM US. YOU UNDERSTAND THAT, ABSENT THIS MANDATORY PROVISION, YOU WOULD HAVE THE RIGHT TO SUE IN COURT AND HAVE A JURY TRIAL. YOU FURTHER UNDERSTAND THAT THE RIGHTS TO DISCOVERY AND APPEALS MAY BE MORE LIMITED IN ARBITRATION THAN IN COURT.

 

Informal Dispute Resolution. We want to address your concerns without needing a formal legal case.  Most concerns may be quickly resolved in this manner. For any dispute with Breath Death, you agree to first provide us written notice of your dispute at Breath Death, Inc., 439 N Bedford Drive, 2nd Floor, Beverly Hills, CA 90210 and attempt to resolve the dispute with us informally. Your notice of dispute must contain enough information for us to identify all relationship(s) that you have with Breath Death and attempt to resolve your claim, including (a) your name; (b) the email address(es) that you use when communicating with or using the Services; (c) your mobile telephone number; (d) your residential address; (e) an explanation of the facts of the dispute as you understand them and supporting information; and (f) a good faith calculation of the damages you claim to have suffered and a statement of the specific relief you are seeking. You may be represented by an attorney or other person in that process. You and we agree to negotiate in good faith following our receipt of this notice of dispute. You agree that a notice of dispute containing all of the information required above, followed by at least 60 days of good faith negotiation, are preconditions to either party initiating a lawsuit or arbitration. A notice of dispute will not be valid unless it contains all of the information required by this Section. If you commence an arbitration without having previously provided a valid and compliant notice of dispute, you and we agree that the applicable arbitration provider (or the arbitrator, if one has been appointed) must suspend the arbitration pending compliance with this paragraph. You and we authorize the arbitration provider or the arbitrator to decide summarily whether the party that commenced an arbitration complied with these notice requirements, relying solely on these  Terms and the notice of dispute provided (if any). All statutes of limitation shall be tolled while the Parties engage in the informal dispute resolution process required by this paragraph.

 

Agreement to Binding Arbitration. In the unlikely event that we do not reach an agreed upon solution within sixty (60) days from the date the informal dispute resolution is pursued pursuant to the Initial Dispute Resolution section above, then unless an Exception applies as stated below, we each agree to resolve any claim, dispute, or controversy arising out of or in connection with or relating to the Services, the Privacy Policy, or these Terms, including but not limited to its formation, performance, breach or alleged breach thereof, and regardless of whether the dispute is based in contract, statute, regulation, ordinance, or tort (collectively, “Claims”), by binding arbitration.

 

The Parties acknowledge that these Terms evidences a transaction involving interstate commerce. Any arbitration conducted pursuant to the terms of this Terms shall be governed by the Federal Arbitration Act (9 U.S.C. §§ 1-16). The application of the United Nations Convention on Contracts for the International Sale of Goods is expressly excluded.

 

Except in the event of a Mass Arbitration (as defined below), the Parties agree that all Claims shall be finally settled by binding arbitration administered on a confidential basis by JAMS, in accordance with the JAMS Streamlined Arbitration Rules and Procedures as modified by these Terms, but excluding any rules or procedures that permit arbitration on a class-wide basis (collectively, the “JAMS Rules”). The JAMS Rules governing the arbitration may be accessed at https://www.jamsadr.com/adr-rules-procedures.  The seat of the arbitration will be decided pursuant to the JAMS Rules. You or Breath Death may elect to appear at the arbitration in person or, if you and we both agree, to conduct it remotely online via appropriate videoconferencing technology, in lieu of appearing live.

 

Each party will have the right to use legal counsel in connection with arbitration at its own expense. The Parties shall select a single neutral arbitrator in accordance with the JAMS Rules. Except as expressly stated to the contrary below, the arbitrator, and not any federal, state or local court or agency, shall have exclusive authority to resolve all arbitrability issues, as well as all issues or Claims arising out of or relating to the interpretation, applicability, or enforceability of these Terms, including, but not limited to, any claim that all or any part of these Terms is void or voidable. The arbitrator shall be empowered to grant whatever relief would be available in a court under law or in equity. The arbitrator’s award shall be in writing and provide a statement of the essential findings and conclusions, shall be binding on the Parties and may be entered as a judgment in any court of competent jurisdiction. In any arbitration before JAMS, the Parties adopt and agree to implement the JAMS Optional Arbitration Appeal Procedure (as it exists on the effective date of these Terms) with respect to any final award in an arbitration arising out of or related to these Terms.

 

If you initiate arbitration, to the extent the filing fee for the arbitration exceeds Two Hundred and Fifty U.S. Dollars ($250) and the claim is found to be non-frivolous and not in bad faith, we will pay the additional cost. If we are required to pay the additional cost of the filing fees, you should submit a request for payment of fees to JAMS along with your form for initiating the arbitration, and we will make arrangements to pay all necessary fees directly to JAMS. We will also be responsible for paying all other arbitration costs arising in connection with the arbitration, other than costs incurred by you for legal counsel, travel and other out-of-pocket costs and expenses not constituting fees or amounts payable to JAMS. You will not be required to pay fees and costs incurred by us if you do not prevail in arbitration, unless the arbitrator determines that the claim was frivolous or brought in bad faith, in which case the arbitrator may award us our attorney’s fees, expert witness fees, arbitration fees and/or costs. We will also pay JAMS to reimburse you for any portion of the $250 filing fee that is more than what you would otherwise have to pay to file suit in a court of law.

 

Class Action and Class Arbitration Waiver. TO THE FULLEST EXTENT ALLOWED BY APPLICABLE LAW, YOU AND WE AGREE THAT EACH PARTY MAY BRING DISPUTES AGAINST THE OTHER PARTY ONLY IN AN INDIVIDUAL CAPACITY, AND NOT AS A CLASS ACTION, COLLECTIVE ACTION OR CLASS ARBITRATION, OR AS A PRIVATE ATTORNEY GENERAL. To the extent applicable law does not permit waiver of private attorney general claims, but permits them to be arbitrated, then such claims shall be resolved in arbitration. You and we each further agree to waive our respective right to file a class action or seek relief on a class basis. If there is a final determination that applicable law precludes enforcement of the waiver contained in this paragraph as to any claim, cause of action or requested remedy, then that claim, cause of action or requested remedy will be severed and may be brought in a court of competent jurisdiction, but the waiver contained in this paragraph shall be enforced in arbitration on an individual basis as to all other claims, causes of action or requested remedies to the fullest extent possible. In the event that a claim, cause of action or requested remedy is severed pursuant to this paragraph, then you and we agree that the claims, causes of action or requested remedies that are not subject to arbitration will be stayed until all arbitrable claims, causes of action and requested remedies are resolved by the arbitrator. If a court or arbitrator decides that any part of this Agreement to Binding Arbitration cannot be enforced as to a particular request for public injunctive relief, then that request for public injunctive relief (and only that request for public injunctive relief) must be brought in court and must be stayed pending arbitration of the arbitrable remedies.

 

Exceptions to Arbitration. Notwithstanding the Parties’ agreement to resolve all disputes through arbitration, either party may bring an action in state or federal court that only asserts claims for patent infringement or invalidity, copyright infringement, piracy, moral rights violations, trademark infringement, and/or trade secret misappropriation. Excluded claims are subject to the jurisdiction provisions in these Terms.

 

Either party may also seek relief in a small claims court for any individual disputes or claims within the scope of that court's jurisdiction. If an arbitration is filed, before the arbitrator is formally appointed, either party can send written notice to the opposing party and the applicable arbitration provider that it wants the case decided by a small claims court, after which the arbitration provider may close the case.

 

Exception—Mass Arbitration Before NAM. Notwithstanding the Parties’ decision to have arbitrations administered by JAMS, in the event 25 or more demands for arbitration are filed relating to the same or similar subject matter and sharing common issues of law or fact, and counsel for the Parties submitting the demands are the same or coordinated, you and we agree that the demands will constitute a “Mass Arbitration.” If a Mass Arbitration is commenced, you and we agree that it shall not be governed by the JAMS Rules or administered by JAMS. Instead, a Mass Arbitration shall be administered by National Arbitration & Mediation (“NAM”), a nationally recognized arbitration provider, and governed by the NAM rules in effect when the Mass Arbitration is filed as modified by these Terms, including the NAM Mass Filing Supplemental Dispute Resolution Rules, but excluding any rules that permit arbitration on a class-wide basis (collectively, the “NAM Rules”). The NAM Rules are available at www.namadr.com or by calling 1-800-358-2550. Notwithstanding anything to the contrary above, you and we agree that if either party fails or refuses to commence the Mass Arbitration before NAM, you or we may seek an order from a court of competent jurisdiction compelling compliance with this agreement and compelling administration of the Mass Arbitration before NAM. Pending resolution of any such requests to a court, you and we agree that all arbitrations comprising the Mass Arbitration (and any obligation to pay arbitration fees) shall be stayed. You and we acknowledge that either party’s failure to comply with this paragraph would irreparably harm the other, and you and we agree that a court may issue an order staying the arbitrations (and any obligation to pay arbitration fees) until any disagreements over the provisions of this paragraph are resolved by the court.

 

30 Day Right to Opt-Out. You have the right to opt-out and not be bound by the arbitration and class action waiver provisions above by sending written notice of your decision to opt-out by contacting us at fresh@getbreathdeath, and providing the following information: (i) your name, (ii) your email address; (iii) your mailing address; and (iv) a statement of your wish not to resolve disputes with Breath Death through arbitration.  The notice must be sent within thirty (30) days of your first use of the Service following the effective date of these Terms; otherwise you shall be bound to arbitrate disputes in accordance with the terms of those sections. If you opt-out of these arbitration provisions, we also will not be bound by them.

 

Term for Cause of Action. You agree that regardless of any statute or law to the contrary, any claim or cause of action arising out of or related to use of the Services or these Terms must be filed within two (2) years after such claim or cause of action arose or be forever barred.

 

To the extent that the arbitration provisions set forth above do not apply or if you have opted out of arbitration, you and we agree to submit to the personal jurisdiction of the state and federal courts located in New York County, New York, and you and we agree that any litigation shall be filed exclusively in state or federal courts located in New York County, New York (except for small claims court actions which may be brought in the county where you reside). In the event of litigation not subject to these Terns to Binding Arbitration, you and we agree to waive, to the maximum extent permitted by law, any right to bring a class action or any right to a jury trial, except where a class action or jury trial waiver is not permissible under applicable law.

 

18.  Local Laws.  We make no representation that any Content, User Content or other materials on the Services are appropriate or available for use in jurisdictions that are outside the United States.  Access to the Services from jurisdictions where such access is illegal is prohibited.  If you choose to access the Services from other jurisdictions, you do so at your own initiative and are responsible for compliance with applicable local laws.

 

19.  Export Restrictions.  Any software and all underlying information and technology downloaded or viewed from any of the Services or in connection with the services (collectively, the “Software or Technical Data”) by you may be subject to U.S. export controls, including the Export Administration Act and the Export Administration Regulations, and may be subject to export or import regulations in other countries.  You are solely responsible for complying with all trade regulations and laws, both foreign and domestic, in your use and viewing of the Services, the Content, the User Content and any of our products or services, including, but not limited to, the Software or Technical Data.  Except as authorized by law, you agree and warrant not to export or re-export the Software or Technical Data to any county, or to any person, entity, or end-user subject to U.S. export controls, including, but not limited to, persons or entities listed on the U.S. Department of Commerce Bureau of Export Administration’s Denied Parties List and the U.S. Department of Treasury’s Specially Designated Nationals.  You further represent and warrant that no U.S. federal agency has suspended, revoked, or denied your export privileges.

 

20.  SMS/MMS Mobile Marketing Program & Notifications.

Breath Death offers a mobile messaging program (the “Program”), which you agree to use and participate in subject to these Mobile Messaging Terms and Conditions and Privacy Policy (the “Agreement”). The following terms govern use of the Program. By opting in to or participating in the Programs, you accept and agree to these terms and conditions.  This Agreement is limited to the Program and is not intended to modify other Terms and Conditions or Privacy Policy that may govern the relationship between you and Us in other contexts.

 

User Opt In:  The Program allows Users to receive SMS/MMS mobile messages by affirmatively opting into the Program, such as through online or application-based enrollment forms.  Regardless of the opt-in method you utilized to join the Program, you agree that this Agreement applies to your participation in the Program.  By participating in the Program, you agree to receive autodialed or prerecorded marketing mobile messages at the phone number associated with your opt-in, and you understand that consent is not required to make any purchase from Us.  While you consent to receive messages sent using an autodialer, the foregoing shall not be interpreted to suggest or imply that any or all of Our mobile messages are sent using an automatic telephone dialing system (“ATDS” or “autodialer”).  Message and data rates may apply.  Message frequency varies.

 

User Opt Out:  If you do not wish to continue participating in the Program or no longer agree to this Agreement, you agree to reply STOP, END, CANCEL, UNSUBSCRIBE, or QUIT to any mobile message from Us in order to opt out of the Program.  You may receive an additional mobile message confirming your decision to opt out.  You understand and agree that the foregoing options are the only reasonable methods of opting out.  You also understand and agree that any other method of opting out, including, but not limited to, texting words other than those set forth above or verbally requesting one of our employees to remove you from our list, is not a reasonable means of opting out.

 

Program Description:  Without limiting the scope of the Program, users that opt into the Program can expect to receive messages concerning the marketing and sale of Breath Death cereal, new Breath Death products, partnerships, surveys, company updates and related content.  You may expect to get occasional texts concerning latest Alerts, Surveys, Welcome messages, Customer win-backs, Text Campaigns, Giveaways, Flash Sales, Upsells. Messages may include checkout reminders.

 

Cost and Frequency:  Message and data rates may apply. Message frequency varies.  The Program involves recurring mobile messages, and additional mobile messages may be sent periodically based on your interaction with Us.

 

Support Instructions:  For support regarding the Program, text “HELP” to the number you received messages from or email us at fresh@getbreathdeath.  Please note that the use of this email address is not an acceptable method of opting out of the program.  Opt outs must be submitted in accordance with the procedures set forth above.

 

MMS Disclosure:  The Program will send SMS TMs (terminating messages) if your mobile device does not support MMS messaging.

 

Our Disclaimer of Warranty:  The Program is offered on an "as-is" basis and may not be available in all areas at all times and may not continue to work in the event of product, software, coverage or other changes made by your wireless carrier.  We will not be liable for any delays or failures in the receipt of any mobile messages connected with this Program.  Delivery of mobile messages is subject to effective transmission from your wireless service provider/network operator and is outside of Our control.  Carriers are not liable for delayed or undelivered mobile messages.

 

Participant Requirements:  You must have a wireless device of your own, capable of two-way messaging, be using a participating wireless carrier, and be a wireless service subscriber with text messaging service. Not all cellular phone providers carry the necessary service to participate.  Check your phone capabilities for specific text messaging instructions.

 

Age Restriction:  You may not use or engage with the Platform if you are under thirteen (13) years of age.  If you use or engage with the Platform and are between the ages of thirteen (13) and eighteen (18) years of age, you must have your parent’s or legal guardian’s permission to do so.  By using or engaging with the Platform, you acknowledge and agree that you are not under the age of thirteen (13) years, are between the ages of thirteen (13) and eighteen (18) and have your parent’s or legal guardian’s permission to use or engage with the Platform, or are of adult age in your jurisdiction.  By using or engaging with the Platform, you also acknowledge and agree that you are permitted by your jurisdiction’s Applicable Law to use and/or engage with the Platform.

 

Prohibited Content:  You acknowledge and agree to not send any prohibited content over the Platform. Prohibited content includes:

  • Any fraudulent, libelous, defamatory, scandalous, threatening, harassing, or stalking activity;
  • Objectionable content, including profanity, obscenity, lasciviousness, violence, bigotry, hatred, and discrimination on the basis of race, sex, religion, nationality, disability, sexual orientation, or age;
  • Pirated computer programs, viruses, worms, Trojan horses, or other harmful code;
  • Any product, service, or promotion that is unlawful where such product, service, or promotion thereof is received;
  • Any content that implicates and/or references personal health information that is protected by the Health Insurance Portability and Accountability Act (“HIPAA”) or the Health Information Technology for Economic and Clinical Health Act (“HITEC” Act); and
  • Any other content that is prohibited by Applicable Law in the jurisdiction from which the message is sent.

Miscellaneous:  You warrant and represent to Us that you have all necessary rights, power, and authority to agree to these Terms and perform your obligations hereunder, and nothing contained in this Agreement or in the performance of such obligations will place you in breach of any other contract or obligation.  The failure of either party to exercise in any respect any right provided for herein will not be deemed a waiver of any further rights hereunder.  If any provision of this Agreement is found to be unenforceable or invalid, that provision will be limited or eliminated to the minimum extent necessary so that this Agreement will otherwise remain in full force and effect and enforceable.  Any new features, changes, updates or improvements of the Program shall be subject to this Agreement unless explicitly stated otherwise in writing.  We reserve the right to change this Agreement from time to time.  Any updates to this Agreement shall be communicated to you.  You acknowledge your responsibility to review this Agreement from time to time and to be aware of any such changes.  By continuing to participate in the Program after any such changes, you accept this Agreement, as modified.

 

If you have additional questions or comments of any kind, or if you see anything on the Services that you think is inappropriate, please let us know by sending your comments or requests to:

 

Email: fresh@getbreathdeath.com

 

Copyright © 2025.  Breath Death Inc.  All Rights Reserved.

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